NJ sues firefighting foam manufacturers

Kyle Bagenstose @KyleBagenstose

Wednesday

May 15, 2019 at 5:00 AM

The state wants companies to pay for investigation and cleanup of toxic chemicals, including around Joint Base McGuire-Dix-Lakehurst.

New Jersey is suing the manufacturers of firefighting foams for “causing widespread contamination” of the state’s environment with toxic chemicals, according to a Tuesday news release from the office of Attorney General Gurbir Grewal.

A civil complaint filed in state Superior Court levels five counts against eight companies, including claims the products were defective, that the companies failed to warn consumers, that they were negligent, created a public nuisance, and violated the state’s Consumer Fraud Act.

“The corporations we’re suing today knew full well the health and environmental risks associated with this foam, and yet they sold it to New Jersey’s firefighters anyway,” Grewal said in a prepared statement. “Their conduct was unconscionable, and we’re going to hold these companies accountable.”

Firefighting foams have become a nationwide concern in recent years, after decades of heavy use at military bases across the country. They contain a family of specialty chemicals called per- and polyfluoroalkyl substances, or PFAS, which help to douse dangerous fuel fires, but which studies also show are toxic.

The use of firefighting foams at Joint Base McGuire-Dix-Lakehurst is known to have contaminated waterways near the base. Mentioned specifically in Tuesday’s suit were Little Pine Lake and Mirror Lake in Pemberton Township, as well as Pine Lake, east of Lakehurst.

The state’s lawsuit seeks a range of actions and penalties, including that the companies pay for environmental testing, monitoring and cleanup of PFAS throughout the state. New Jersey has set or is close to setting drinking water standards for three of the most well-known PFAS chemicals, and the suit appears to request that the chemicals be investigated and removed entirely from the environment.

“Such investigation is necessary to ascertain the scope of (foam)-related contamination and to return the natural resources impacted to levels that are safe for human health and the environment, as well as to the condition they were in prior to the impact of these contaminants,” the suit reads.

The suit seeks various additional, civil damages. Under the fraud count, the state wants the companies to “disgorge all funds and property (real and personal) acquired and/or retained as a result of any acts or practices in violation” of the law. It further asks the companies to return any money or other compensation to state government entities, counties, municipalities, or local fire departments who purchased the foams.

The compliant levels numerous allegations that the companies knew their products could be harmful, going all the way back to the 1950s, when it alleges 3M learned PFAS would bind to proteins in the human body.

“For decades, these companies allegedly deceived New Jersey’s fire departments and other government agencies about the toxicity of their products,” Paul Rodríguez, acting director of the New Jersey Division of Consumer Affairs, said in a prepared statement. “With today’s complaint, we are making clear that we intend to hold companies responsible when they misrepresent the safety of their products and, in doing so, put our state’s residents at risk.”

Requests for comment were sent to each of the companies; many did not immediately respond.

Fraser Engerman, a spokesman for Johnson Controls, which owns Tyco and Chemguard, denied the claims and said the companies manufactured the foams to meet military specifications.

“Tyco and Chemguard acted appropriately and responsibly at all times in producing our firefighting foams,” Engerman wrote in an email. “We make our foams to exacting military standards, and the U.S. military and civilian firefighters have depended for decades on these foams to extinguish life-threatening fires … We will vigorously defend this lawsuit.”

Fanna Haile-Selassive, communications manager for 3M, said the company “acted responsibly in connection with its manufacture and sale of (foam) and will vigorously defend its record of environmental stewardship.”

David Rosen, a spokesman for Chemours, said the company was "puzzled" by the charges. Chemours spun off in 2015 from DuPont, which manufactured PFAS chemicals.

"Chemours does not manufacture, formulate or sell firefighting foam and does not use PFOS or PFOA in the production of any of its products," Rosen said.

Environmental groups cheered New Jersey’s lawsuit, which is the third such legal action the state has taken on PFAS chemicals this year.

“For too long, companies like DuPont and 3M knew they were selling toxic products to people. They lied about the use of firefighting foam and knew it was harmful but went along with it anyway,” Jeff Tittel, president of the New Jersey Sierra Club, said in a news release. “It is critical that Attorney General Grewal has stepped up and will make sure these companies are accountable for what they have done.”

Tracy Carluccio, deputy director of the Delaware Riverkeeper Network, said her group also “applauded” Grewal’s actions.

“The selling of toxic firefighting foam is an issue that must be litigated so the companies who are responsible have to clean up the pollution and pay for it,” Carluccio said.

This news organization also previously investigated prior knowledge of the potential harms of firefighting foams by the military and foam manufacturers. Documents we obtained show Navy firefighting experts knew in 1995 that PFAS in foams “may have an affinity” for living organisms and should be examined in drinking water systems, according to an article they wrote in the National Fire Protection Association (NFPA) Journal.

In 2001, one of the article’s authors, Christopher Hanauska, also delivered a presentation to the NFPA on firefighting foams. According to an attendee’s minutes of the meeting, Hanauska said the foams represented a “threat” that would “at the very least” require substantial changes to the organization’s foam standards. Hanauska called the chemicals’ properties a “death warrant," the notes state.

This news organization could not determine the author of the minutes, which the NFPA said was not an official association document. However, several interviewees recalled the meeting and independently verified the topics discussed. The notes list 3M, Chemguard, National Foam and Tyco representatives attending the meeting.

“(Hanauska’s statements) appeared to put the attending foam manufacturers on the defensive throughout the remainder of the meeting,” the notes read.

Despite the apparent misgivings offered by some in the industry and military by the early 2000s, an analysis later conducted for the firefighting industry determined the military used an estimated 1.05 million gallons of an original supply of 2.1 million gallons of firefighting foam between 2004 and 2011.

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